ERIN-DIANNE RICHARDS: Radical transparency will stop corruption in its tracks

For the past three decades SA has been grappling with major governance malfunctions. Our politicians have told us the problem is corruption and that the solution is accountability. That, respectfully, is an outright deceit.

This country is plagued by corruption and organised crime from the very highest levels of executive power to the broader administration: high-ranking officials are routinely being found guilty of corruption, tender fraud is rife, and we have a parliament that is almost entirely defunct at performing its oversight functions.

This is not accountability. Time and again we discover, ex post facto, that many of those we have elected into power are most likely criminals of the highest order. But these discoveries come too late. By the time we find out, the harm has already accrued and it’s largely irreversible in the short to medium term.

True accountability is intertwined with transparency. Timely transparency allows for corruption to be identified and halted in its tracks, instead of years later — as was the case with state capture. Timely and robust transparency bolsters the capabilities of parliament as the executive watchdog, and the capabilities of the fourth estate to pursue unencumbered investigative journalism. It’s an obvious recipe for a healthier society — but for some reason, transparency hardly appears to be on the agenda.

South Africans are deeply concerned about accountability. They have been told that accountability is the panacea to corruption. But a mere conspectus of the present state of affairs reveals that accountability is nothing but a paper tiger in the absence of adequate transparency.

So why are none of the political parties aggressively pursuing transparency policies as they campaign? Perhaps they prefer limited transparency models to secure their own self-interest or perhaps they simply enjoy exploiting the political showmanship that emanates from transparency lawfare.

The leadership and governance model for which our leaders continually advocate is clearly not working. Yet our politicians persist in advocating for accountability and the removal of corruption from the state apparatus. But what is the plan? There is none. No party has a viable, long-term solution to eliminate corruption and malfeasance.

The situation is perplexing because the answer is simple. Adopt radical transparency and stop corruption in its tracks. Our present legislative framework does not facilitate the attainment of these objectives. It does not adhere to the clear constitutional design of a transparent state enabling swift accountability mechanisms to function. Instead the relevant legislative prescripts seem (almost deliberately) to have been crafted to safeguard power and foster fertile ground for corruption.

At the risk of over-simplification, according to section 32 of the constitution the right of access to information is granted to all citizens. Public bodies are obliged to provide information to anyone who requests it. The Promotion of Access to Information Act (Paia) was the legislation promulgated to give effect to section 32.

Constitutionally, it is permissible for Paia to provide for “reasonable measures to reduce the administrative and financial burden on the state”. However, that proviso did not give the legislature unlimited power to unduly constrain the right of access to information by making it unnecessarily hard and expensive to procure information.

Section 1 of the constitution sets out the founding values of our democratic state. That section shapes the constitutional structure in a way that ensures transparency. Properly construed, it limits the obstacles section 32 can create for those attempting to access information, and in my view much of Paia is simply too restrictive to be constitutionally compliant.

Paia has a plethora of problems at present:

• It presupposes that the information seeker has a clear idea of what they need and can request it from the appropriate public body. However, when a large amount of information is concealed under the pretext of state secrecy (or whatever other creative excuses we hear from our leaders), people frequently lack the knowledge of what to ask for in the first place. As a society, we end up waiting for leaks or “tips” from disgruntled faction members before we know what information to request. The entire scheme is somewhat self-defeating and in obvious need of reform.
• The process is cumbersome. It entails completing forms many South Africans cannot access, and mandates the paying of prescribed fees. This is untenable when many don’t know precisely what information to request, or from whom to request it in the first place. The ensuing fishing expeditions can become costly — even to those of us who are relatively well resourced. This is unacceptable in the 21st century. Public bodies should upload their information onto websites for easy downloads. That would substantially reduce the administrative and financial burdens.
• The grounds for refusing access to information are excessive. Paia stipulates, for example, that an information officer of a public body must reject a request for certain records, including records that would unjustly disclose personal information about a third party, and records that contain commercial information of a third party. That information can be easily redacted. It is unclear why the entire document must be withheld.
• Section 12(a) excludes access to documents such as cabinet minutes and minutes of their committees. Cabinets wield significant executive authority alongside the president. They play a pivotal role in policy formulation, legislative implementation, departmental co-ordination and legislative initiation. While it is understandable that internal deliberations may need to remain confidential to uphold collective cabinet accountability, this rationale does not apply to all final decisions.

At a bare minimum, access to these decisions, and even certain deliberations (appropriately redacted) are fundamental in aiding parliament’s oversight functions. Arguably, cabinet deliberations, minutes and decisions could be requested directly under section 32 of the constitution, given that they’re excluded from the ambit of Paia — but why not simply legislate for their accessibility and remove the administrative and cost burden of litigation? Why is the legislature so intent on making some of the most important information so difficult to access?

Information can be requested from private bodies, provided that the information so sought is “required for the exercise or protection of a right”. That’s putting the cart before the horse, to say the least. Often one requires the information to know whether our rights have been breached or require protection. Expecting someone to know which of their rights require protection in the absence of information requires some form of divination on the part of the applicant. This is absurd.

Politicians voicing concern about corruption must act decisively to enhance transparency if they want to be taken seriously about their commitment to combating corruption. Re-evaluating Paia and their own transparency policies would be an encouraging start.

But perhaps I am exercising my mind unduly. Perhaps the answer as to why politicians seem to detest transparency is simple. As per the House of Cards line: Claire Underwood: “We’ve been lying for a long time, Francis.” Francis Underwood: “Of course we have. Imagine what the voters would think if we started telling the truth.”

• Richards is an advocate specialising in constitutional and administrative law.